2002 PLP 2779 (YLR)

(3) Whether the plaintiff has not fulfilled the requirements of Talabs? If so, its effect? OPD. (4) Whether the defendant has spent money in improving the land and as such entitled to recover the same? OPD. (5) Whether the plaintiff has waived his right of pre‑emption? OPD. (6) Whether the suit is within time? OPD. (7) Whether the defendant is entitled to special costs under section 35‑A of C.P.C.? if so to what extent? OPD. (8) Whether the suit of the plaintiff has not been correctly valued for the purposes of court‑fee and jurisdiction? If so what is the correct valuation? OPD. (9) Whether the plaintiff has got superior rights of pre‑emption against the defendant? OPD. (10) Whether the ostensible sale price of Rs.95,000 was fixed in good faith and actual paid to the vendee? If not so its market value of the suit‑land at the time of sale? OPP. (11) Relief. The learned trial Court vide judgment dated 17‑1‑1994 dismissed the suit of the plaintiff mainly on the ground that the plaintiff had failed to prove the Talb‑i‑Muwathibat'. The appeal before the learned Additional District Judge, Faisalabad meet the same fate on 21‑3‑1995.

3. The learned counsel for the petitioner contended that in para. 2 of the written statement `Talb‑i‑Ishhad' was only questioned and there was no mention of 'Talb‑i‑Muwathibat' in it. He further submitted that no question on the fulfilment of 'Talb‑i‑Muwathibat' was asked to the plaintiff/petitioner or his witnesses since no question was put in the cross‑examination the simple statement of the plaintiff was enough to prove the 'Talb‑i‑Muwathibat'. He referred to section 13(1) of the Punjab Pre emption Act. He argued that the onus to prove issue No.3 regarding `Talbs' was placed on the defendant but after conclusion of the evidence it was illegally shifted to the plaintiff by the learned trial Court. The plaintiff/petitioner was deprived of his right to lead the evidence which materially prejudiced his case. Reliance was placed upon Sar Anjam v. Abdul Raziq (1999 SCMR 2167). Conversely the learned counsel for respondent contended that the onus to prove the 'Talb‑i‑Muwathibat' is always on the plaintiff P. W.3 and P. W.4 are not the witnesses of 'Talb‑i‑Muwathibat'. It was stated by the petitioner that in his testimony that when he came to know of the sale there were two guests present in his house and his nephew Asghar Ali had informed him about the sale. None of the three had been produced as witness. Lastly he submitted that there was a concurrent finding of fact against the petitioner.

4. I have gone through the judgments of the Courts below and perused the record. In para 2 of the plaint the petitioner/plaintiff had specifically stated that he came to know of the sale on 7‑10‑1991 and he immediately and the same meeting declared his intention to pre‑empt the sale fulfilling the 'Talb‑i- Muwathibat'. In reply to this para. the respondent only questioned the 'Talb‑e- Ishhad' and did not specifically deny the 'Talb‑i‑Muwathibat'. However, preliminary objection, general in nature, regarding non‑fulfillment of 'Talbs' was raised but in the body of the written statement only 'Talb‑i‑Ishhad' was questioned. The issue regarding 'Talbs' was as under:‑ "Whether the plaintiff has not fulfilled the requirements of 'Talbs'? If so its effect? OPD". The paragraph 9 of the judgment of the learned trial Court reads as under:‑ "In fact the onus to prove of this issue was on the plaintiff but onus was shifted to defendant inadvertently. It is, therefore, the onus is hereby rectified. The onus to prove of this issue was on plaintiff." In my view when the learned trial Court found that the onus had been inadvertantly placed on the defendant, it should have provided an opportunity to the plaintiff to adduce evidence on the issue as he had not led evidence and rightly so when, the onus probandi was not placed on him. Whatever the evidence was adduced by plaintiff it was on 'Talb‑i‑Ishhad' although reference to 'Talb‑i‑Muwathibat' was also made. The Honourable Supreme Court has held that the details of 'Talbs' need not be given in plaint and the same can be proved by adducing evidence. See Sar Anjam v. Abdul Raziq (1999 SCMR 2167). The plaintiff has clearly averred in the plaint that on learning about the sale on 7‑10 -1991 he declared his intention that he would exercise his right of pre‑emption. In the interest of justice he should be allowed an opportunity to prove the same. The Additional District Judge failed to take into consideration the fact that onus to prove issue No.3 was placed on defendant. The learned trial Court did not give its finding on 'Talb‑i‑Ishad' and held "that plaintiff has not proved the first Talb required by law, therefore, no need to prove the remaining two 'Talbs'. The learned trial Court committed illegality and material irregularity by shifting, the onus to plaintiff without providing an opportunity to him to adduce evidence on the issue. The learned Additional District Judge failed to take note of the same.

5. In this view of the matter this petition is allowed the impugned judgments are set aside and the case is remanded to the trial Court for providing an opportunity to the plaintiff/petitioner to adduce evidence on question of 'Talb‑i- Muwathibat' only and decide the issue No.3 afresh in accordance with law and re‑write the judgment accordingly. H.B.T./G‑135/L Order accordingly.